Tye v. Ruark

• Decision Date: 22 October 1965
• Docket Number: No. 4985,4985
• Citation: 179 So.2d 612
• Parties: John Robert TYE, Appellant, v. Bruce RUARK, a minor, by his father and next friend, Preston Ruark, and Preston Ruark, Appellees.
• Court: Florida District Court of Appeals

Page 612

179 So.2d 612

John Robert TYE, Appellant, v. Bruce RUARK, a minor, by his father and next friend, Preston Ruark, and Preston Ruark, Appellees.

No. 4985.

District Court of Appeal of Florida, Second District.

Oct. 22, 1965.

Rehearing Denied Nov. 19, 1965.

Patrick H. Dickinson, of Dart, Bell & Dickinson, Sarasota, for appellant.

Thomas H. Stokes, Sarasota, and Wm. S. Boylston, of Evans, Thomas & Boylston, Sarasota, for appellees.

KELLY, CLIFTON M., Associate Judge.

The appellant was the defendant in an action for damages brought against him by Bruce Ruark, a minor, by his father and next friend, Preston Ruark, and by Preston Ruark, individually. The complaint, in substance, alleged that the defendant so negligently and carelessly operated his automobile as to cause it to seriously injure the plaintiff, Bruce Ruark, a ten year old bicyclist. The defendant denied that he was negligent and set forth the affirmative defense of contributory negligence on the part of the minor plaintiff.

The first trial of the case ended with a hung jury. The second trial resulted in a verdict for defendant.

The evidence tended to show that at about 3:00 P. M. on July 1, 1961, the defendant was driving his 1960 Pontiac Sedan in a northerly direction on Coconut Avenue, a residential area, in Sarasota, Florida. For several hundred feet prior to his reaching the address of 1824 Coconut Avenue, there were no obstructios to the defendant's view of the street, or of the area between the easterly part of the sidewalk and the street, except an occasional tree. The shapes of the trees were such that the defendant's view was not obstructed to any appreciable degree because of them. The defendant's car struck the ten year old boy and the bicycle he was riding almost at the same instant that the defendant first saw him. As a result of the accident the minor plaintiff suffered severe injuries.

The defendant contended that he did not observe the child until about the same instant his car struck him and when he did see him he immediately tried to stop his car. When the defendant on direct examination was asked the question: 'All right, sir. As you approached the place where the accident occurred, would you, in your own words, tell the jury what you observed and what happened at that time?' His answer was, 'Well, I was driving north to [sic] Coconut and all of a sudden Bruce was in front of me on a bicycle and I hit him. He was just there, I didn't know, I couldn't swear where he came from or anything, and as soon as I saw him I tried to stop and everything just happened so quick that there was no way in the world I could have kept from hitting him.' The defendant maintained that his speed was between 20-25 miles per hour . The evidence is undisputed that the skidmarks on the road resulting from the defendant's application of his brakes measured between 47 and 48 feet. Mr. Clarence S. Bruce, a well-known traffic analyst from Fort Myers, Florida, who testified for the plaintiff, said in his opinion the skidmarks would indicate that the defendant's speed was 31 miles per hour when he struck the child. The speed limit on Coconut Avenue was 25 miles per hour.

The minor plaintiff maintained that he walked his bicycle down the driveway from the Ponleit home, where he had been visiting, to the sidewalk, looked both ways, got on his bicycle, looked again and then went out into the street. (The Ponleit home was on the defendant's right as he proceeded north). In more detail, the plaintiff stated that when he looked the first time he saw the defendant's car approaching when it was more than a block away; that after he got on his bike and looked again the car was a little closer; and that he then went straight into the street from the driveway and was hit by the defendant's car in about the center of the street. He admitted that after he had looked twice he rode out into the street without again looking to his left and that he didn't know where the defendant's car was when he went into the street, because he didn't see it.

The distance from the west side of the sidewalk to the street was 8 feet, with the sidewalk being 5 feet wide. The street was 32 feet wide. There was a sharp dispute as to how far out into the street the boy was when he was struck down. The skid marks began 7 1/2 feet from the easterly curb in the right lane going north and there was an indentation with the paint broken on the top of the left fender of the defendant's car in front of the sideview mirror. The car was 6.73 feet wide. So it clearly appears that the minor plaintiff was about in the center of the street when he was hit, which was in accordance with his testimony.

Upon motion by the plaintiffs the trial judge granted a new trial . The judge's order for the new trial stated:

'* * * [T]he Court being of the opinion that the verdict of the Jury does not accord with the manifest weight of the evidence and the substantial justice of the cause demands that a new trial be granted; the Court is of the further opinion that the Jury should not have been instructed on the doctrine of sudden emergency because the only reasonable interpretation of the evidence clearly establishes that the Defendant was never confronted with an emerency; furthermore, the only reasonable interpretation of the evidence establishes that the Defendant failed to see Plaintiff until the moment of impact, although the evidence shows that Plaintiff was in view for a period of time prior to impact, and that such failure to observe the Plaintiff would be negligence on the part of the Defendant causig or contributing to such emergency; the Court is of the further opinion that the giving of such charge to the Jury probably changed the results of the trial as such charge would tend to confuse or mislead the Jury; * * *.'

The only questions to be considered by this Court are those involved in the order granting the new trial; that is whether it was error to instruct the jury on the doctrine of sudden emergency and whether the trial court erred in granting plaintiffs a new trial because the verdict did not accord with the manifest weight of the evidence and the substantial justice of the cause. It is more than well established that trial courts are allowed a very broad and liberal discretion in granting a new trial; that there is a presumption of correctness in favor of an order by the trial judge in allowing a new trial; and that a strong showing that there was a clear abuse of discretion is required to reverse such an order. Cloud v. Fallis, Fla.1959, 110 So.2d 669; Pyms Real Estate v. Meranda, Fla.1957, 98 So.2d 341; Florida Publishing Co. v. Copeland, Fla.1956, 89 So.2d 18; Myers v. Atlantic Coast Line Railroad Co., Fla.1956, 86 So.2d 792; Turner v. Frey, Fla.1955, 81 So.2d 721; Geffrey v. Langston Const. Co., Fla.1952, 58 So.2d 698; Poindexter v. Seaboard Air Line Railroad Co., Fla.1951, 56 So.2d 905; and Dent v. Margaret Ann Super Markers, Inc., Fla.1951, 52 So.2d 130.

The requisite factual requirements to support an instruction on the sudden emergency doctrine, found in an annotation appearing in 80 A.L.R.2d, 15-17, are that:

'[T]he evidence should be sufficient to support a finding (1) that the claimed emergency actually or apparently existed; (2) that the perilous situation was not created or contributed to by the person confronted, or, as held or stated in many cases, by the tortious act or conduct of such person; (3) that alternative courses of action in meeting the emergency were open to such person, or that there was an opportunity to take some action to avert the threatened casualty; and (4) that the action or course taken was such as would or might have been taken by a person of reasonable prudence in the same or a similar situation. Where there is evidence sufficient to support a finding as to the existence of such requisites, and procedural requirements have been complied with, the instruction should, of course, be given.'

It is very questionable if the evidence was sufficient to show the existence of the necessary factual requisites to justify the trial court in giving...